Allowed

Rev Fr Alfred Mendonca v. Ramakrishna Gowda

Karnataka HC4 Sept 2023WP/3043/2021

Case brief

AI extract

What is this about?

The petitioner, aggrieved by the trial court's rejection of an application for appointing a court commissioner to measure disputed land, approached the High Court under Article 227. The court held that the trial court erred in dismissing the application and allowed the writ petition in favor of the petitioner's claim.

What did the court decide?

The impugned order dated 11.02.2020 passed in I.A. No.5 of O.S.No.67/2016 is set aside and the application for appointment of Court Commissioner is allowed.

Rev Fr Alfred Mendonca Vs Ramakrishna Gowda — Property and Title | Karnataka HC (2023)

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NC: 2023:KHC:31719 WP No.3043 of 2021

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 4^TH DAY OF SEPTEMBER, 2023 BEFORE

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THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL WRIT PETITION NO.3043 OF 2021 (GM-CPC)

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BETWEEN:

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Digitally signed by RUPA V Location: HIGH COURT OF KARNATAKA

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REV. FR. ALFRED MENDONCA AGED ABOUT 68 YEARS PARISH PRIEST ST. MICHAEL'S CHRUCH MADIKERE- 571201 REPRESENTED BY HIS GENERAL POWER OF ATTORNEY FR. JOHN SEQUEIRA.

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(BY SRI. SRINIVAS V, ADV.,)

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AND:

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…PETITIONER

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RAMAKRISHNA GOWDA S/O MUDDE GOWDA AGED ABOUT 59 YEARS.

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KARI GOWDA S/O GENDEGOWDA AGED ABOUT 64 YEARS.

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MR. KRISHNEGOWDA S/O NINGEGOWDA AGED ABOUT 61 YEARS.

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MRS. INDRAMA W/O NARASIMHEGOWDA AGED ABOUT 59 YEARS.

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ALL ARE R/AT GANANGUR GRAMA T.M. HOSUR POST

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K. SHETTYHALLI HOBLI

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NC: 2023:KHC:31719 WP No.3043 of 2021

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SRIRANGAPATNA- 571438 MANDYA DISTRICT.

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…RESPONDENTS

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(R1 TO R4 ARE SERVED BUT UNREPRESENTED)

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THIS W.P. IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER DTD.11.2.2020 PASSED IN O.S.NO.67/2016 ON THE FILE OF THE PRL. SENIOR CIVIL JUDGE AND JMFC AT SRIRANGAPATNA ON IA NO.V VIDE ANENXURE-F TO THE W.P. AND CONSEQUENTLY ALLOW THE IA NO.V FILED UNDER ORDER 26 RULE 9 R/W SECTION 151 OF CPC & ETC.

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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This writ petition is filed by the petitioner-plaintiff under Article 227 of the Constitution of India assailing the order dated 11.02.2020 passed on I.A.No.5 in O.S.No.67/2016 on the file of the Principal Senior Civil Judge and JMFC, Srirangapatana (for short, ' the trial Court' ).

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2. The parties are referred to as per their ranking before the trial Court.

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3. Brief facts giving rise to filing of this petition are

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that the petitioner has filed O.S.No.67/2016 seeking prayer to declare that the plaintiff is the owner and title holder of the suit schedule 'A' property and consequential permanent mandatory injunction order directing the defendants to vacate the encroached portion of schedule 'C' property and other prayers. In the said suit, the plaintiff has filed an application under Order XXVI Rule 9 of read with Section 151 of CPC seeking prayer to appoint the Commissioner to measure the suit schedule properties and submit the report. The said application was duly considered by the trial Court and rejected vide order dated 11.02.2020. Being aggrieved by the said order of the trial Court, the plaintiff is before this Court.

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4. Sri.Srinivas V., learned counsel for the petitioner-plaintiff submits that the trial Court has committed grave error in dismissing the application filed by the plaintiff seeking appointment of Court Commissioner. The trial Court has failed to appreciate the

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fact that the parties to the proceedings are disputing the boundaries and without measuring the properties, its extent and encroachment, the dispute in question cannot be decided and therefore, in order to ascertain the boundaries, it is just and necessary to measure the boundaries of the suit schedule properties. It is submitted that during the course of cross-examination of PW-1, the defendants have suggested that there is an encroachment of land by him and therefore, in order to get the actual extent of encroachment of the land as pleaded by the plaintiff, it is just and necessary to measure the suit schedule properties and these aspects have not been properly appreciated by the trial Court and rejected the application. Hence, he seeks to allow the writ petition.

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5. Though the notice is served on the respondents, they remained absent.

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NC: 2023:KHC:31719 WP No.3043 of 2021

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6. I have heard Sri.Srivinvas V., learned counsel

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for the petitioner and perused the material available on record.

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7. It is not in dispute that the petitioner has filed the suit for declaration and mandatory injunction wherein specific assertion has been made in the plaint that when the plaintiff tried to put up the compound wall to the schedule 'A' property, the defendants resisted and did not allow to continue the work and thereafter he has filed an application for measurement of the land through the authorities. However, the defendants have not participated in the survey. The plaintiff got measured the land through a private surveyor only to find out the measurement and based on the said survey he has attempted to put up fencing which was resisted by the respondents-defendants and he came to know that the defendants have encroached a portion of his property.

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8. The defendants have opposed the application stating that the plaintiff is seeking to get measured the

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land bearing Sy.No.147 of Ganangoor Village i.e., 'A' schedule property; schedule B to C properties are not in existence and seeking for appointment of Court Commissioner is nothing but misleading the said Commissioner as there is no suit schedule property with the boundaries given by the plaintiff. It is averred that the evidence of both the parties is not yet completed and therefore, the question of appointment of Court Commissioner would not arise, hence, sought for rejection of the application.

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9. On close scrutiny of the material available on record, it is evident that the defendants in their written statement at paragraph No.4 have averred that the defendants have no objection for measurement of suit schedule 'A' property as per the Tippani copy existing before the plaintiff has purchased the same. However, in paragraph No.6 of the written statement, they have

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disputed the boundaries of the suit schedule properties. Therefore, in my considered view, the trial Court has committed an error in dismissing the application on the ground that if the Court comes to the conclusion that those evidence and documents, after the trial, are not sufficient to dispose of the case, then the appointment of Court Commissioner is necessary to know the real facts, the said finding is contrary to the facts, material on record and law.

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10. On perusal of the application seeking appointment of Court Commissioner, the plaintiff is seeking to measure the suit schedule properties by specifically stating that the defendants are not allowing him to get the property measured through private surveyour. When the petitioner has made specific assertion of encroachment and seeking a prayer for declaration and mandatory injunction on the basis of pleading and in view of material available on record, I am of the considered view that the trial Court has committed

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grave error in rejecting the application. The appointment of Court Commissioner is required to ascertain the factual matrix insofar as the extent, boundaries of the suit schedule properties, the Court Commissioner shall submit report basing his reliance on the revenue records, Tippanis, etc. Mere appointment of Court Commissioner itself will not amounting to decreeing the suit in favour of the plaintiff as sought for. The report of the Court Commissioner can be an aid for the trial Court to arrive at a correct conclusion. The decision and the finding of the trial Court cannot be solely based on the report of the Court Commissioner, but on pleadings and evidence on record. Under Order XXVI Rule 9 of CPC, a power is conferred on the Court to appoint Court Commissioner for local inspection in order that the Court may better appreciate the evidence already on record. The power under this Rule is discretionary and the object of local inspection is not to collect the evidence. The Commissioner would be able to furnish correct information

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with regard to assertion and denial of the respective stand of the parties before the trial Court which would aid the

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trial Court in deciding the subject lis .

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11. For the aforementioned reasons, I pass the following:

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ORDER

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i. The writ petition is allowed .

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ii. The impugned order dated 11.02.2020 passed on I.A.No.5 in O.S.No.67/2016 on the file of the Principal Senior Civil Judge and JMFC, Srirangapatana is set aside and the application I.A.No.5 filed under Order XXVI Rule 9 of CPC is allowed.

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Sd/JUDGE

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BSR

Rev Fr Alfred Mendonca v. Ramakrishna Gowda

Case brief

What is this about?

What did the court decide?

Rev Fr Alfred Mendonca v. Ramakrishna Gowda

Case brief

What is this about?

What did the court decide?

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